Friday, February 29, 2008

Transfer Development Rights as Applied to Agricultural Land Use Protections

Timothy J. Lawrence, Transfer of Development Rights, Land Use Series, Ohio State University, available at (last visited February 29, 2008).

This piece is useful not only as a clear and coherent introduction to the Transfer of Development Rights (“TDRs”), but also unique for the manner in which it advocates for the potential use of TDRs for the purpose of protecting farm land in Ohio.

It explains TDRs in terms of the Purchase of Development Rights (“PDRs”) and distinguishes them on the basis that TDRs rely on a set "receiving" and "sending" area, and an exchange in development rights between the two.

Notably, the article also makes reference to state law amendments geared toward the recognition of TDRs and incorporation of the phenomenon into state real estate and development codes. As such perhaps this is an area in which we can use state law reforms and legislators (generally more favorable to development than those of Berkeley City government) and essentially bypass local ordinances.

Thursday, February 28, 2008

Brainstorm Topics for Papers

  • Transfer Development Rights
    • Tie in w/ historic preservation.
    • How used elsewhere: case studies, both empirical and theoretical
    • How to implement in Berkeley
      • Political issues
      • Legal issues
    • Height/density tie in.
  • Historic Preservation
    • What is protected?
    • What else could be protected?
    • Ordinances & mechanisms for designation
    • Comparisons w/ other cities
    • How to improve existing ordinances
    • Impact on economic development
  • Homelessness
    • Relationship btw homelessness/crime and economic development
      • Case studies?
      • How has this played-out in Berkeley in the past?
    • Infrastructure issues w.r.t. lighting, open spaces, etc.
    • Existing Berkeley policies/laws
    • Role of service providers
      • Service providers’ take on PCEI
    • Proposed solutions: redrafting ordinances
    • Housing the homeless: alternatives
    • How do federal policies/statutes bear on this?
  • Infrastructure
    • Pedestrian walk-way
    • BRT/LRT proposal
    • Parking issues
      • Case studies from cities that have implemented info-dense systems
      • Parking metering policies
    • Height/density issues
      • Maybe a better fit w/ TDR group?
    • The Charles Hotel
      • Capital crisis
    • New Berkeley Museum
    • What do students want downtown?
    • Green development & greening the current infrastructure
    • Current legislative/political regime
    • Current economics
      • Residential/commercial/mixed-use
    • Open spaces & parks
      • Where?
      • How much?
      • Water feature????

David Brower Center and Oxford Plaza: Berkeley Sustainable Development

After seven years in planning, The David Brower Center and Resources for Community Development (RCD) began construction on a landmark green development in downtown Berkeley. The multi-use complex is intended to be a model of environmentally and socially sustainable planning. It will be built within walking distance of public transportation and include affordable homes and retail space at Oxford Plaza.

The Brower Center will be a LEED-Platinum-certified building, where the Center’s nonprofit office tenants may be able to benefit from collaboration and a healthy working environment. It will be among the first buildings in the Bay Area to receive the highest LEED green building rating. The Brower Center will include 50,000 square feet of affordable office space leased primarily to nonprofit organizations, the Richard and Rhoda Goldman Theater, meeting spaces, an art gallery, and an organic restaurant.

Move-in is scheduled for January 2009, and the Brower Center has a waiting list of more than 30 organizations, including the California League of Conservation Voters, International Rivers Network and Build It Green. The Center for Ecoliteracy and Earth Island Institute are among the Center’s anchor tenants.

David Brower, a pioneer in the environmental movement, was the Sierra Club’s first executive director and founded the League of Conservation Voters, Friends of the Earth, and Earth Island Institute. Berkeley Mayor Tom Bates stated, “The David Brower Center will provide an international center for environmental research, advocacy, and innovation. I can think of no more appropriate place in the world for this work to take place."

Oxford Plaza will meet a need for affordable housing in Berkeley by creating 97 units of affordable, high-quality rental units. The new apartments – from studios to 3-bedroom units – will be affordable to those usually priced out of Bay Area housing, from individuals bringing in less than $12,000 yearly to families of four earning up to $50,280 annually. The Plaza is located close to BART, buses, jobs and amenities.

Resources for Community Development (RCD) is a non-profit affordable housing development corporation. Founded by Berkeley community members in 1984, RCD currently has a portfolio of over 1,300 affordable housing units that it has developed or owns in Northern California.

Press Release, Landmark Sustainable Development Breaks Ground in Berkeley: The David Brower Center and Oxford Plaza Merge Environmental Headquarters, Cultural Venues, and Affordable Housing (May 14, 2007),

Wednesday, February 27, 2008

Touring downtown with DAPAC

In 2005, DAPAC Committee members, joined by city and UC Berkeley staff and members of the public, took a two-and-a-half-hour tour of the district that will be the subject of a new central city plan.

The university’s plans include adding approximately one million square feet of floor space downtown, both in acquisition of existing buildings and in new development. Just how to accommodate that massive expansion is part of all DAPAC discussions.

Members spent part of Saturday focused on Oxford/Fulton Street and Center Street.

The one-block stretch of Center Street between Oxford Street and Shattuck Avenue was the focus of considerable attention because the university owns most of the block on the north side of the street, where it plans to build a museum complex and is working with a private developer to create a hotel and conference center. Several speakers asked the committee to consider proposals to close the street to through traffic and “daylight” Strawberry Creek—which now flows in a concrete culvert beneath the pavement—to create a public plaza.

Another issue with Downtown Berkeley is the lack of a central focus. “There is no central focus now,” said John McBride, who posited that, with proper handling, the two-block triangle created by the split of the north- and south-bound lanes of Shattuck could fit the bill.

After the walking tour, several participants expressed a new appreciation for Berkeley’s landmarked buildings—which were featured in a map distributed to all participants. Members of the Berkeley Architectural Heritage Association were present in force to argue for preservation of the numerous city landmarks in the downtown area. While several participants said they felt downtown lacked sufficient parking, Wrenn noted that parking spaces are abundant, particularly in structures, and that the only real parking crush comes between 1 p.m. and 2 p.m. on weekdays, when the available parking often drops to about 200 slots.

Several members said they thought many of Berkeley’s sidewalks were often too crowded and too narrow. In addition, they believed that it was disgusting that the streets were littered.

Richard Brenneman, Touring Downtown With DAPAC, Berkeley Daily Planet (Dec. 6 2005), available at,

Tuesday, February 26, 2008

Transportation Options

I found a presentation on Transportation Options that was presented at a meeting of the Transportation Commission and DAPAC. The presentation suggested creating a transportation model which would create a way to assess how transportation in Berkeley functions today and in the future. This would provide decision makers with a method of testing the transportation consequences of their decisions. It would also allow the city to test how various development plans would impact transportation in downtown. The transportation model could also help disclose potential environmental impacts of policy decisions. The transportation model would test such things as the quantity and distributions of trips (origins and destinations), the mode split of trips (cars, transit, walking and bikes), travel patterns (direction and flow), traffic performance (intersections volume and capacity), and other performance issues, including those related to parking.

The presentation also mentioned some of the transportation options that the city is considering, including converting travel lanes to bike lanes, sidewalks, or landscape, creating Shattuck square, boulevard options for Shattuck, and moving BART from Shattuck to Oxford. The presentation discussed First Street in Livermore as an example of transportation remodeling. Here, the city converted 2 lanes into angled parking and paved former parking lanes to create a downtown street segment that was pedestrian-friendly.

Presentation by the Transportation Commission and DAPAC of January 31, 2007 re: Transportation and Land Use Options, available at

Monday, February 25, 2008

Build it and they will come?

Josh Mukhopadhyay


Patrick Kennedy mentioned his plan to mix housing and social services in his future Berkeley developments on the first day of class. Since then his proposal has come up repeatedly, both as a positive that should be explored further and as a cautionary example of a developer building coalitions with sympathetic partners simply to help get through the entitlement process.

Mr. Kennedy’s theory of change basically says build it and they will come. ‘They’ are the future residents of downtown housing who will in turn induce demand for retail and also create a political constituency that demands public safety improvements. This model’s fundamental assumption is that the pioneering residents will stick it out between move-in and the lagging commercial development and improved neighborhoods.

Are the two above notions compatible? If you seek to draw in middle and upper-class residents to ‘homestead’ an urban area, they will do so with the expectation that the neighborhood will improve over time. If some of those ground floor retail spots where new residents hope to someday find a Starbucks, Gordon Biersch or Banana Republic instead end up holding a homeless shelter or halfway house, will the whole model unravel?


Downtown Los Angeles’ Skid Row area has been being gentrified over the past decade and has faced a similar dynamic. Loft dwellers have brought life to formerly derelict areas, but commercial development has been limited and the social problems have been squeezed into the ever shrinking not yet gentrified area available to the homeless population.

A recent LA Times article tells the story of the Little Tokyo Lofts – a six story former factory that was turned into condos that sold for between $400,000 and $1,200,000. The building included a 6,500 square foot ground floor retail space, and developers hoped to sign a boutique market like TJ’s. Even though the area recently lured its first supermarket in fifty years, that firm (a Ralph’s) located itself on the very edge of Skid Row. While it has been doing brisk business, other retailers haven’t yet decided to follow suit and move in nearby, much less locate in the core area. But the developer’s pro forma had assumed the commercial space would be rented, and eventually had to settle for a sub-optimal tenant.

In the end, a social service provider moved in and will be use the space for its mental health program. Everybody is understandably upset with this outcome – loft residents feel like they were sold a bill of goods and may badmouth future development efforts and the service provider is in a building where they know their landlord didn’t really want them and where their patients are unwanted. If ground floor retail space can be difficult to fill with desirable tenants in a still gentrifying area, the build it and they will come model for a mixed-use community may fall flat. The remedies might range from expensive subsidies to attract business to settling for ‘undesirable’ tenants like social service providers. These will further complicate the project’s economic analysis.


Cara Mia DiMassa, Little Tokyo residents resent mental health facility, L.A. Times, February 21, 2008, available at,0,4937026.story.

Economic Benefits of Historic Preservation

Department of Archaeology and Historic Preservation, "The Economic Benefits of Historic Preservation in Washington State: Executive Summary,"

The Department of Archaeology and Historic Preservation from Washington analyzed the economic effects of historic preservation (which I assume means upkeep, repair and restoration) over a 4-year period and found that it was actually economically beneficial to the state. This runs contrary to a lot of common assumptions about historic preservation, which is that it detracts from new development which is supposedly more economically beneficial.
This Executive Summary of their much longer report highlights the findings of the study:
"Data compiled on Washington state projects taking advantage of federal and state historic building rehabilitation tax credit programs indicate that historic rehabilitation activities qualifying under these programs from 2000 to 2004 involved average spending of $83.5 million each year. These investments generate direct economic impacts through the purchase of goods and services. Expenditures also generate indirect and induced activity in other parts of the economy through related spending at local businesses by supporting industries and households."
"In Washington State, the initial annual investment of $83.5 million generated total sales of $221 million, supported 2,320 jobs in a variety of economic sectors, and paid $87 million in wages and salaries each year. This economic activity generated an estimated $8.9 million in state sales and Business and Occupation taxes, as well as local sales tax revenue (which are not included in this total)."
The report goes on to state that these totals underestimate the true value of historic preservation and rehabilitation because they only take into account projects that qualify under the federal and state tax credit programs and omit spending by governments, charitable organizations, and individuals on their own homes. The authors advocate the "Washington Main Street Program," which restores traditional main streets as some are hoping for in Berkeley, and believes that historic preservation leads to "cultural heritage tourism," which is defined as "traveling to experience the places, artifacts and activities that authentically represent the stories and people of the past and present."
The take-away point of this report is that perhaps historic preservation and economic development are not mutually exclusive, and that Downtown Berkeley might benefit from historic rehabilitation and preservation as much as it may from new building development. Both have the potential to lead to a revitalization of the neighborhood, but together their effects could be even greater.

Why some homeless avoid shelters

Mayor Bates stated emphatically that the homeless do not like living in homeless shelters.  I wanted to find out the reasons why some homeless avoid shelters.

It is true that some homeless tend to avoid shelters.  The reasons for avoidance vary and depend somewhat on the homeless person’s demographics and idiosyncrasies.  Some of the reasons I found were derived from responses by the homeless to inquiries from news reporters.  Those reasons are therefore anecdotal.  Still, I believe we can learn something from their responses.

First of all, some homeless have developed social communities on the street and find it difficult to leave their communities for homeless shelters.[1]  To put it more directly, life on the street has its own appeal.[2]

To continue, common complaints about shelters across the entire homeless demographic are (1) the fighting, (2) lack of personal space, and (3) having to be near crack-heads and other worrisome people.[3]  Other less common complaints include abusive shelter staff—although it is unclear whether the abuse is real or only perceived—and stifling rules and regulations.[4]

Families and women with children avoid shelters because they fear the “rough element” (e.g., single males) and poor conditions at many shelters, and they may prefer to live with other families or to live outdoors.[5]

Even men find shelters unfriendly and unsafe.  Shelters may be populated with a mixture of criminals, the mentally ill, addicts and other troubled people. [6]  In New York, for example, hundreds of men fill the shelters after working, panhandling, or collecting cans, and just hang out or use drugs and drink.[7]  The atmosphere can be intimidating, and many residents compare the atmosphere to that of prisons, where the strong often prey on the weak. [8]  Furthermore, “fights and petty thefts are common.”[9]  Indeed, a homeless man in New York opted to sleep outside rather than in a shelter, even in the middle of winter.  He exclaimed, “Trust me, these shelters are trouble. They get crazy there and maybe they steal your sneakers.”[10]

“Young [homeless] people often avoid adult shelters because their pets are not allowed entry.  Also they feel threatened by adults.”[11]  In addition, many youths dislike the rules and regulations of the shelters.  They would rather live a barrier-free life, and that often entails snuggling up in nooks and corners all over the city, or just about anywhere the cops won’t be able to get a hold of them.[12]

[1] C.W. Nevius, Tour of homeless shelters contradicts unsafe image, The San Francisco Chronicle, Oct. 18, 2007, B-1.

[2] Id. at B-1.

[3] Brian Feagans, Walk a mile in the shoes of Road Dog and Peg Leg; Life's a constant struggle for survival when you're ON THE FRINGE, Star-News, Dec. 27, 1998, A-1.

[4] Nevius at B-1; Riya Bhattacharjee, Program Aims to Remove Homeless Youth from the Streets of Berkeley, The Berkeley Daily Planet, Feb. 28, 2006, at 1, 14.

[5] Edward F. Vacha and Marguerite V. Marin, Informal Shelter Providers: Low Income Households Sheltering the Homeless, Journal of Social Distress and the Homeless, Vol. 2, No. 2, 1993, at 117, 119.

[6] Josh Barbanel, Still on the streets: New York’s homeless avoid shelters, New York Times, Dec. 17, 1988, A-1.

[7] Id.

[8] Id.

[9] Id.

[10] Somini Sengupta, Despite Cold, Some Homeless Devise Strategies to Avoid Shelters, New York Times, Jan. 4, 1999, B-5.

[11] Bhattacharjee at 5, 14.

[12] Id. at 14.

Sub-prime Debt Crisis and the Redevelopment of Berkeley’s Downtown

Charles v. Bagli, Developer Holds Off Creditors, For Now, New York Times, February 16, 2008.
Peter S. Goodman, This is the Sound of a Bubble Bursting, New York Times, December 23, 2007.

Although there is some dispute as to the degree to which the impending debt crisis and fall of the real estate markets will influence the potential development of downtown Berkeley, I think the issue is at least worth further examination and discussion.

The articles cited here demonstrate that the ramifications of the sub-prime crisis on the debt market are having a significant impact on private development efforts, even in large, affluent cities like New York. Specifically, this impact seems to come from the fact that it is now more difficult for even solvent, reliable developers to get debt at a decent rate (such that justifies the investment at cost and allows then to make a profit) than in years past. This is wholly in addition to the related concern of decreased demand.

Although this does not translate directly into a potential paper topic for our class, it does, at least in my mind, stress the importance of acting now and capitalizing on the current abundance of private developers interested in putting their own money into revising downtown, while that interest still exists.

Sunday, February 24, 2008

Bay Area needs to rethink its rules on land use, zoning

Joseph Perkins, Bay Area needs to rethink its rules on land use, zoning, Oct 21, 2007, S.F. Chron., at F-1.

In this SF Chronicle article from October 2007, Joseph Perkins[1] asks: “How and where is the Bay Area going to house its additional 1.5 million residents?” His question contemplates projections made by the Association of Bay Area Governments in 2007: 1.5 million new residents are expected in the nine-county Bay Area region by 2030.

Perkins is concerned that the Bay Area will not be able to meet its housing production needs if the region’s recent history is an accurate predictor of its future performance. Contra Costa, he notes, is the only county from 1999 to 2006 to have kept pace with its population and employment growth. And the affordable housing supply was particularly poor: only six of 101 cities met the needs of their qualifying residents.

So what is the cause of the Bay Area’s shortcomings? Perkins blames excessive land-use regulations that make it “arguably the nation’s least hospitable region in which to build housing.” But going a step beyond, Perkins faults the “no-growth, anti-housing environmental alliance” whose activism has led to large and permanent open space designations. He also accuses them of hiding from the “unsuspecting public” that “only 16 percent of the region’s land area has been developed.”

With respect to future housing needs, Perkins says that the Bay Area environmental groups inaccurately suggest these needs can be met by smaller-scale, infill development within that 16 percent. By Perkins’ estimations, only one quarter of the projected 1.5 million people could be so accommodated. Green field development, he says, would be required to meet the needs of the remaining three quarters.

Perkins adds that if the environmental groups achieve their next large open space campaign, housing production will be further dampened and home prices will increase beyond the affordability of many next generation Bay Area residents.

And as a final twist to his knife, Perkins cites to a paper published by the Harvard Institute of Economic Research to conclude that affordability problems cannot be adequately combated through the imposition of affordable housing requirements upon builders. Housing prices are “three times higher” in this region, snaps Perkins, not because “home builders are somehow three times more avaricious than their counterparts in the rest of the country. It’s because the region’s land use restrictions and other anti-housing regulations are three times more onerous.”

[1] Perkins is President and CEO of the Home Builders Association of Northern California.

Downtown Portland Wrestles with the Idea of a Day-Access Homeless Shelter

This article on downtown Portland highlights the classic debate on how best to address a city’s homeless population in face of urban renewal. Downtown Portland is in its third year of a ten year downtown renewal effort. In addition to an overnight homeless shelter, city leaders and advocate for the homeless seek to create a day-access center for homeless people. The center would be funded by the city, and managed by non-profits. Essentially, this day-access shelter would receive the homeless kicked out of the overnight shelter. Since most shelters close in the early morning, the homeless have few places to go besides the street. The shelter would provide a place for the homeless to “drink coffee, stay warm and receive help finding a permanent home.” Free haircuts, bike storage, mail delivery, computer lab, and a foot care clinic are other amenities currently under discussion. City Commissioner Sten argues that this new center will not add homeless people to Portland’s Old Town, but will help them leave. The commissioner also argues that the location in Old Town is preferable to other sites because it provides the easiest access. However, Carol McCreary, president of the Old Town Chinatown Neighborhood Association, cautions that the location of the center will pose a public safety issue for the neighborhood which has “come so far from its skid row days.” While property owners and residents in the area oppose the construction of the Center, the Commissioner states that “there is no City Council member who is going to give them (downtown) $300 million and not put the center there.”

Anna Griffin, “Old Town Homeless Center Strokes Ageless Debate,” The Oregonian, (Jan. 24 2008).

Jenny Cheung

Homelessness and Downtown Revitalization in Houston

Dallas, Texas, like Berkeley, is struggling to revitalize its downtown district while dealing with a large homeless population. A recent study looks at the impact of homelessness on downtown revitalization and concludes that an effective strategy to reduce homelessness will lead to further enhancement of the arts district, Main Street retail, and downtown office and residential properties.[1]

The business community in Dallas has recognized that solving the homelessness problem is critical to downtown revitalization efforts.[2] In 2000, the Central Citizens Association commissioned the Center for Economic Development and Research at the University of North Texas to examine the economic and fiscal costs of homelessness.[3] The study found a large disparity in property values in the northern and southern sectors of the downtown district. Property values rose almost 100 percent in the northern half between 1995 and 200, and only 70 percent in the southern half where most of the city’s homeless are concentrated.[4] The cost in terms of foregone potential property tax receipts was several million dollars.[5]

A follow-up study in 2004 looked at Miami’s successful strategy to reduce homelessness and its positive impact on downtown revitalization. Miami built two homeless shelters and developed a comprehensive assistance program that provides outreach, assessment, placement, information, referral, and transportation services.[6] As of 2003, there were only 941 homeless persons in Miami, 350 of whom were in the downtown area.[7] Local private and public business development organizations, including the Downtown Miami Partnership, the Downtown Development Authority, and the Miami Community Redevelopment Agency, all agree on the importance of addressing homelessness as an important ingredient in downtown revitalization. [8] The city’s business and political leaders attribute the downtown’s building boom and retail growth to a decrease in the number of homelessness, a significant reduction in crime, and improved parking facilities.[9]

The follow-up study then surveyed business owners in Dallas’s downtown district to measure the impact of homeless persons on business activity.[10] The survey revealed that homeless individuals have a large impact on downtown businesses. Forty-five percent of respondents reported that they incurred additional business expenses due to the presence of homeless persons.[11] Of these businesses, 41% estimated their additional costs to be between $1,000 and $3,000 per month, and 35% estimated their costs to be $5,000 or more per month.[12] These expenses were attributed to additional cleaning, security, or both.[13]

Further, 56.6% of business owners said sales were affected by the presence of homeless persons, and 76.3% had considered relocating out of the downtown district because of the presence of homeless persons.[14]

The study also re-examined the impact of homelessness on property values in the downtown district.[15] The 2000 study had found that the average real property value for improvements in the southern sector was only $59.84 per square foot, compared with $78.75 per square foot in the northern sector in 2000.[16] While property values fell overall in the ensuing years, the disparity between sectors remained in 2003. The average real property values came to $47.23 per square foot in southern sector, compared with $63.30 in north [17] The City of Dallas, Dallas County, and the Dallas Independent School District are losing $2.4 million per year dear to valuation disparities from lack of development in southern half of the downtown district.[18]

The report concludes that the “overwhelming” presence of homeless persons on the streets of the downtown district has negative economic impacts on individual business, the prospects for redevelopment, and the city’s tax revenues.[19]

[1] Bernard L. Weinstein and Terry L. Clower, Improving Services to Dallas’ Homeless: A Key to Downtown Revitalization 3 (Center for Economic Development and Research 2004).
[2] Id. at 1-2.
[3] Id. at 2.
[4] Id.
[5] Id.
[6] Id. at 13.
[7] Id.
[8] Id. at 14.
[9] Id.
[10] Id. at 15.
[11] Id. at 16.
[12] Id. at 17.
[13] Id.
[14] Id.
[15] Id. at 19.
[16] Id.
[17] Id.
[18] Id. at 19-20.
[19] Id. at 22.

Saturday, February 23, 2008

Another College Town Considers Public Transit Options for Its Downtown

Ann Arbor, MI, has drawn comparisons to Berkeley for many reasons, not the least of which is that both cities house famous universities. The two now appear to warrant another comparison, as both are considering implementing overhauls to their cores that have the potential to substantially change their respective downtown areas. As The Ann Arbor News reports, Ann Arbor is currently considering the construction of a Light Rail Transit (LRT) system employing streetcars, a proposal that some argue would lend a “much hipper, urban feel to the city.”

Detractors from the proposal point to the costs associated with such a system, which have been suggested to exceed $50 million. Supporters, in response, point to the success of the recently completed LRT system of streetcars in Seattle, WA, which has seen ridership in the first six weeks more than double pre-construction estimates, totaling over 100,000. Rick Sheridan, the spokesperson for the Seattle Transportation Department, explains that people who would refuse to utilize other forms of public transportation have nevertheless embraced the streetcar system. Portland, OR, has seen similar success with its streetcar system, with ridership almost tripling in the last year to 11,000 riders per day. Moreover, streetcar systems from Portland to Tampa, Fla., have spurred investment in the surrounding areas: Portland has enjoyed $2.28 billion in investments in within a 2-block radius of the system since it was installed in 1997, while Tampa has seen a $1.2 billion investment within the same radius of its own system since completion in 2002.

Nevertheless, costs remain a significant hurdle to the construction of any LRT system. The cost of completing these systems in Seattle, Tampa and Portland, each of which installed roughly 2.5 miles of rails, have been $51m, $55m, and $57m, respectively. To cover these costs, those cities utilized a combination of public and private financing.

With respect to Berkeley, which is already considering some form of augmented public transit both within its own downtown area and to increase regional connectivity, the likelihood of adopting an LRT system seems small, as a recently commissioned study concluded that a Bus Rapid Transit (BRT) system would better serve the needs of the region. Nevertheless, the study did hold out the establishment of an LRT system as a longer-term goal for the area. In either event, the finding of increased investment in the area surrounding the transit route is heartening, as Berkeley has had difficulties in recent years attracting and retaining new businesses in its downtown area. Further, the city’s newfound commitment to “greening” the city would be well served by an augmented public transit system, and the success of the Portland and Seattle LRTs in attracting users that would otherwise not use public transit suggests that the construction of such a system in this area would advance these laudable environmental goals.

Tom Gantert, Some see streetcars in Ann Arbor's future, THE ANN ARBOR NEWS, Feb. 23, 2008.

Friday, February 22, 2008

Starting Proposal for Paper on Homelessness / PCEI

Hi everyone,

I wanted to share a starting proposal for how we could structure a paper on the presence of the homeless downtown. I tried to suggest a fairly flexible format which could be expanded or narrowed depending upon how many people want to write on this topic. I should add that even though this paper is technically about the homeless, I think any discussion about the homeless downtown also has to address the relationship between the homeless and crime rates (while maintaining a distinction between the homeless and those who are committing crimes). To that end, I think our paper should include some isolated discussion of crime rates downtown.

Please have a look at what I have written below and share your ideas about how we can modify it!


Premise & Overview: This paper could proceed from the premise that Berkeley cannot revitalize its downtown without addressing head-on two key elements that are missing from the DAPAC Report: concerns over public safety and the presence of the homeless downtown. The fundamental message of the paper could be that any attempt to revitalize Berkeley’s downtown will not succeed unless the City seriously addresses homelessness in a way it has not yet done (for example, with a functional, enforceable, and constitutional ordinance). The paper would then redraft the Public Commons for Everyone Initiative Ordinance to craft more enforceable local policy that better reflects a respect for Berkeley citizens’ civil liberties.

Outline: The paper could begin with (1) an Introductory Statement situating this paper within the context of the DAPAC Plan. Then the paper could proceed with three descriptive “foundational” sections: (2) a section explaining how and why economic growth is inhibited both by (a) the presence of the homelessness, and (b) high crime rates; (3) a section compiling and analyzing crime rates and the presence of the homeless in Berkeley itself; and (4) how Berkeley has attempted to address homelessness downtown, both through the Public Commons for Everyone Initiative (PCEI) and through any other relevant legislation or policies. Then the paper would shift to (5) a critique of Berkeley’s policymaking on addressing homelessness issues, and (6) a proposal for how Berkeley should address homelessness, including a redrafted PCEI ordinance. In conclusion, (7) the paper could integrate our proposals back into the goals of the DAPAC Plan.


  1. Introductory Statement
  2. Relationship Between Homelessness/Crime Rates to Economic Development
    1. How The Presence of The Homeless Inhibits Economic Growth
    2. How Crime Inhibits Economic Growth
  3. Homelessness Rates & Crime Rates in Berkeley
    1. How present are the homeless in Berkeley?
    2. What are current crime rates downtown?
    3. Is there a relationship between the presence of the homeless downtown and downtown crime rates?
  4. Berkeley’s Attempts to Address Homelessness Downtown
    1. The Public Commons for Everyone Initiative (PCEI)
    2. Other Relevant Legislation or Policies
  5. Why The PCEI Will Fail to Address Homelessness in Berkeley
    1. Critiques of PCEI Ordinance: Unconstitutional / Bad Policy
    2. Additional critiques of Berkeley policymaking
  6. Proposed Solutions
    1. A Redrafted PCEI Ordinance
    2. Additional proposals re: legislation / enforcement
  7. Conclusion

Thursday, February 21, 2008

Over-Stuffing the Envelope: The Problems with Creative Transfer of Development Rights

Transferable development rights (TDR) are transactions in which the owner of a small building or landmark severs, sells, and transfers his unused development rights to another parcel of land.[1]

TDR can be applied to landmark buildings to allow survival of cultural institutions.[2] TDR allows the landmark owner to realize the potential development value for his landmark by selling air rights or unused development rights to a purchaser who will gain additional floor area for development.[3] The arrangement allows the public to continue to enjoy historic buildings and sites and the city to receive new tax revenue.[4] However, critics are concerned about the potential for TDR to result in increased bulk on city blocks, the loss of light and air on the streets, congestion on public transportation, and strain on neighborhood services.[5]

The use of TDR in New York City has evolved since 1916 when the 1916 Zoning Ordinance first allowed adjacent lots to combine their air rights to erect a tower exceeding height regulations.[6] Over time, the City Planning Commission began to allow creative interpretations of zoning regulations for the benefit of non-profit institutions.[7] In 1968 the city allowed the owner of Grand Central Station, which was suffering economically because of the decline of the railroads, to transfer its development rights to locations further away than previously allowed, and to transfer all rights to one receiving lot (rather than limiting transfer to a 20% increase for the receiving lot).[8] The city also sought to promote redevelopment in the South Street Seaport area where landmark buildings were in a state of severe disrepair.[9] The city expanded the way TDR may be utilized by creating a district of transferor lots and receiving lots that allowed for transfer of rights to preserve historic structures and allow for new commercial development.[10]

Critics note that such creative interpretations of zoning regulations set precedent for future imaginative transactions.[11] These changes are made to achieve short-range financial objectives at the possible expense of the traditional urban planning objectives on which the zoning laws were based.[12] New York’s zoning goals include controlling population density, building, size, and land use[13]; maintaining property values; and preserving light and air on city streets through height, area, and public use regulations.[14] Critics of the creative use of TDR point to increased bulk in new development beyond that permitted by the original zoning laws, the risk of overdevelopment resulting in increased population density and use of neighborhood resources[15], the altered character of neighborhoods, and the marring of landmarks by the adjacent construction of large buildings.[16]

[1] Margaret Giordano, Over-Stuffing the Envelope: The Problems with Creative Transfer of Development Rights, 16 Fordham Urb. L.J. 43 (1987-88).
[2] Id. at 46.
[3] Id. at 55.
[4] Id.
[5] Id. at 46.
[6] Id. at 47.
[7] Id. at 57.
[8] Id. at 60.
[9] Id. at 61.
[10] Id.
[11] Id. at 65-66.
[12] Id. at 66.
[13] Id. at 47.
[14] Id. at 48.
[15] Id. at 55.
[16] Id. at 67.

Cody’s Books To Move Downtown, Close Fourth St. Store
Cody's bookstore is venturing downtown from Fourth Street to the corner of Allston and Shattuck, where Eddie Bauer used to be. Cody's will apparently be an economic plus for the downtown area, according to Michael Caplan, Berkeley's economic development director.

In actuality, Cody's may bring some more business to the downtown area because of its reputation in West Berkeley and loyal clientele. Perhaps this may be a move upward for the downtown area. Let's hope so.

Quick Review of CEQA, from Guide to California Planning

William Fulton & Paul Shigley, Guide to California Planning 155-79 (2005).

CEQA was enacted in 1970 to address some of California’s environmental protection needs. Since its enactment, it has probably become “the most hotly debated planning-related law in California.” We have heard many times about the effects of CEQA on Berkeley development, but we have not yet managed to include an introduction to the Act itself in our blog. I thought I would briefly do so here in list format for our quick reference.

→ To unearth information about the likely environmental consequences of any “project”
→ To encourage debate by public and elected officials about those consequences

CEQA does not function to:
→ Improve CA’s environment directly
→ Usurp local authority over land use decisions
→ Establish a state enforcement agency
→ Require a wholesale denial of harmful projects

CEQA does function to:
→ Inform decisionmakers about significant environmental effects
→ Identify ways environmental damage can be avoided
→ Prevent avoidable environmental damage
→ Disclose to the public why a project is approved even if it leads to environmental damage


→ Step 1. Is the action in question a “project” under CEQA?
o Ministerial Actions – Are not projects because their issuance does not involve any discretion
o Discretionary Actions - Generally, any discretionary action that involves the physical environment is a "project" and is subject to CEQA
o Exemptions:
§ Statutory exemptions – e.g., demolition permits, adoption of coastal and timberland plans, some mass transit projects, and certain types of small infill and affordable housing projects
§ Categorical (Resources Agency) exemptions – divided into around 32 categories – e.g., projects under 10,000 sq. ft., projects of three homes or fewer, projects resulting in “minor alterations on the land,” and transfer of land ownership to create parks

→ Step 2. If the action is a project and no exemption applies, local government planners will conduct an initial study of probable, significant environmental consequences
o No formal threshold for “significance,” though some “significant effects” are indicated in the Guidelines – e.g., projects that would (1) have a major impact on area aesthetics; (2) substantially diminish fish, wildlife, or plant life habitats; or (3) displace a large number of people
o Planners or consultants will use a “checklist” to assess environmental factors and speculate as to potential impacts
o If nothing is significant, a negative declaration is made so that no further review is needed; If something is significant but is mitigated/changed, a mitigated negative declaration is made and no further review is needed; otherwise, if there remains something significant, proceed to Step 3

→ Step 3. If consequences are likely significant, then an environmental impact report (EIR) must be prepared specifying the damage and ways of mitigating that damage
o Most often required for larger projects
o Frequently expensive and time-consuming; developer often carries the costs during this time, which may kill the project
o Additions/Supplements/New EIR may be required as the project changes or new information becomes available
o Types of EIRs:
§ Development-specific EIRs
§ General plan EIRs
§ Master EIRs and tiering

→ Step 4. Engage in public discussion based on the initial study and, if applicable, the EIR

→ Step 5. Local Government resolves the outcome
o There are no absolute requirements to reject harmful projects nor are there specifications for minimizing damage; however,
o Guidelines do indicate that an agency should not approve a project if there are feasible alternatives available that would substantially lessen any significant effects
o Resolution Options:
§ Deny the project
§ Approve an environmentally preferable alternative
§ Approve the project, but only if mitigation measures are adopted
§ Approve the project in spite of its effects

→ No state agency is empowered to enforce CEQA, though state attorney general may file lawsuits to force compliance
→ Primarily meant to be enforced by citizens through litigation; this has given rise to citizen groups threatening litigation to obtain leverage over planning and over individual development projects

→ Court rulings fall into four general categories:
o Whether CEQA applies
o Whether an EIR should be prepared
o Whether the EIR is adequate
o Whether procedures were followed

Wednesday, February 20, 2008

Report and Recommendation for a Bus Rapid Transit System on the Berkeley-Oakland Corridor


In 2002, Cambridge Systematics, Inc., of Oakland, presented the results of a 2-year study commissioned by AC Transit regarding the feasibility of new or augmented transit options in the Berkeley-Oakland area. Currently, buses operating along the Berkeley/Oakland corridor carry 40,000 passengers a day, 20% of AC Transit’s total ridership. The report projects that ridership will increase to over 250,000 riders a day, of which roughly 115,000 would be better served by a new system than the current options available from BART and AC Transit.

The study was primarily concerned with improving access to the major employment and educational centers of downtown Berkeley and downtown Oakland, improving connectivity with other transit providers, improving reliability, and increasing ridership to reduce the percentage of transportation made via automobiles in the region. The study considered expanding the existing bus system, the creation of a Bus Rapid Transit (BRT) system, and the construction of a new Light Rail Transit (LRT) system. These options were evaluated considering factors including reliability, comfort, ridership, capital and operational costs, and impacts on traffic. The creation of a BRT system was found to best meet these considerations, although the report includes the caveat that a Light Rail system “should be considered as a long-term goal.”

The report, therefore, recommends the creation of a BRT system, running from the Berkeley BART station, down Telegraph Avenue to downtown Oakland, and continuing on to the Bay Fair BART station. The recommended system, which would be easily convertible to an LRT system at a later date, would include:
• Special transit lanes dedicated to BRT
• Traffic signal priority
• Frequent service, with busses running every 5 to 8 minutes
• Stations spaced at wide intervals of 1/3 to 1/2 mile
• Well-developed stations with shelters, boarding platforms, security, and fare machines
• Multi-door, low-emission busses.

Citing the importance that riders place on reliability and speed, the report concludes that a BRT or LRT system is preferable to expanding the existing bus system, as the dedicated lanes and traffic prioritization would ensure greater speed and increased reliability. While a BRT system would provide a 15 to 25% improvement in speed over an expansion of the existing system, the incremental improvement of an LRT system over the proposed BRT system would only be in the range of 2 to 10%. The corridor currently sees roughly 40,000 riders each day. A BRT system is projected to increase ridership to roughly 60,000 passengers per day, while an LRT system is projected to increase ridership to 66,000. Again, the adoption of either a BRT or LRT system would substantially increase use, but an LRT would show declining marginal increases when compared to a BRT system. The construction and operational costs associated with an LRT system, however, greatly surpass those of a BRT system, and the construction of an LRT would entail substantially longer delay until completion. The report, therefore, recommends the adoption of the BRT system rather than the LRT for the time being.

Sustainable Agriculture as Sustainable Development

John Ling, Ferry Building Gets Preservation Award, San Francisco Chronicle (October 4, 2003).

Center for Urban Education about Sustainable Agriculture (CUESA), Sustainable Agriculture A-Z (available at

In the first group breakout discussions, my group and I discussed the idea of a weekly outdoor farmer’s market in downtown Berkeley. A farmers market would take into account all of the key elements of development desired in Berkeley: environmental sustainability, avoidance of cookie-cutter chain stores, and retail affordability, as farmers markets sell healthy food at relatively low costs. In this vein, I began researching the recently redeveloped Ferry Plaza Farmer’s Market in San Francisco.

The Ferry Plaza was considered a hugely successful development project on San Francisco’s waterfront, credited in part for helping to “bring up” the area around and below Market Street. The SF Ferry Plaza houses a wide variety of restaurants, wine bars, food-related retail and, of course, the ferry terminals. In addition, the structure of the Ferry Building itself is noteworthy; the building received an award from the National Trust for Historic Preservation in recognition of its status as a (preserved) historic landmark.

Most significantly, not only is the Ferry Plaza now home to the farmers market, it is also home to the Center for Urban Education about Sustainable Agriculture (CUESA), the entity which sponsors and manages the SF Ferry Plaza Farmers Market. CUESA addresses all aspects of sustainable development: from water use to soil building to labor rights. Something similar may appeal to Berkeleyans.

Berkeley Police Department / City Manager Reports to City Council

Week Six Readings: Berkeley Police Department / City Manager Reports to City Council

Bluebook Citations:

  1. Memorandum from Phil Kamlarz, City Manager, to Honorable Mayor and Members of City Council of the City of Berkeley of Feb. 12, 2008, re: Quarterly Report: Crime in Berkeley.
  1. Memorandum from Phil Kamlarz, City Manager, to Honorable Mayor and Members of City Council of the City of Berkeley of Sept. 18, 2007, re: Quarterly Report: Crime in Berkeley.
  1. Memorandum from Phil Kamlarz, City Manager, to Honorable Mayor and Members of City Council of the City of Berkeley of Mar. 13, 2006, re: Quarterly Report: Crime in Berkeley.
  1. Memorandum from Phil Kamlarz, City Manager, to Honorable Mayor and Members of City Council of the City of Berkeley of Feb. 21, 2006, re: Quarterly Report: Crime in Berkeley.


The City Council of the City of Berkeley requires the City Manager, Phil Kamlarz, to provide quarterly reports on crime rates in Berkeley to the Council. Although these reports are meant to be generated on a quarterly basis and shared at City Council meetings for discussion about crime prevention strategies, the reports seem to have been generated and made available online on a somewhat more sporadic basis. (I have only been able to locate two reports from spring 2006, one from fall 2007, and one from spring 2008). These reports are generated prior to City Council meetings so that the City Manager can present the findings to the Council at the meeting, the Council can discuss crime reduction strategies, and the Council can discuss the findings of the reports.

These reports reveal some interesting information about the way in which crime is committed, tabulated, and analyzed by the City of Berkeley.

First, the initial Feb. 21, 2006 report on 2005 crime rates in Berkeley includes three graphs charting concentrations of crime rates within the City of Berkeley itself – an extremely valuable resource given that it can be difficult to determine where different kinds of crime are concentrated within overall crime rates for the city (i.e., to what degree do City of Berkeley crime rates reflect crimes committed downtown?). These mapped charts demonstrate that violent crimes are strongly concentrated downtown and to the south of campus in the City of Berkeley, centered at Allston and Shattuck downtown and at Regent and Dwight to the south of campus. Property crimes are strongly concentrated downtown on Shattuck between Allston and Center Streets. Automobile burglaries, however, do occur downtown but are more frequently committed south of UC Berkeley’s campus along Dwight Street.

Second, the initial Feb. 21, 2006 report on 2005 crime rates in Berkeley also includes per capita comparison between the City of Berkeley and other cities nearby (Fremont; Oakland; Richmond; Hayward; Vallejo; Concord). That data demonstrates that Berkeley ranks third behind Oakland and Richmond in violent crimes per capita (Berkeley has 26.3 violent crimes per 10,000 people, while Oakland and Richmond each have over 60), but Berkeley has by far the highest rate of property crimes among all cities, at 379.1 property crimes per 10,000 people. These charts thus reflect that Berkeley’s crime rates for property crimes are the highest in Alameda County, and they are concentrated in downtown Berkeley, and that Berkeley’s violent crime rates are high and also concentrated downtown – although not as high as the rates in Oakland or Richmond.

Third, the most recent 2008 report on Berkeley crime rates includes some interesting commentary that Mayor Bates neglected to mention in his speech to the class. Mayor Bates cited Berkeley as having 210 full-time police officers; this 2008 report indicates that budget cuts and reduced grant funding have forced the Berkeley Police Department to reduce 203 sworn officers in 2001 to 186 sworn officers in 2008. The report notes that these budget reductions may prevent the police department from achieving further crime reduction goals.

Finally, I think it is notable that the City Council directs the Berkeley Police Department to report its crime rates and statistics through the City Manager, and that the Berkeley Police Department has the opportunity to communicate about its approach to law enforcement and its response to citywide planning. To me, this is all the more reason why I would like to know the question that went unanswered in Mayor Bates’ talk: whether and to what degree the Berkeley Police Department had a hand in creating the Public Commons for Everyone Initiative and redrafted ordinances.

Scandinavia to DAPAC: Low Is Beautiful

Cities in Scandinavia such as Stockholm and Copenhagen have been around 800 to 950 years longer than Berkeley, but they have refused to build skyscrapers. These cities realized that when a city builds large structures, they overshadow the historic landmarks and compromise the city’s core.
In Berkeley, the mayor is pushing for approval of 16-story buildings. However, such structures would cost the citizens views of the Campanile, the city hall, the bay, the Golden Gate Bridge, and the hills.
Even though Stockholm does not have tall buildings, it still has accomplished the goal of density by constructing numerous five to seven story buildings. As a result, Scandinavia leads the world in promoting broad prosperity and bridging social inequality. Scandinavian countries routinely top international rankings of overall “quality of life” and residents’ self-reported happiness.
Berkeley’s 1990’s development plan had a similar plan of five to seven story buildings. No one appears to dislike this plan except for those that sit very high up—like in the mayor’s office, or top UC administrative offices, or the leafy Piedmont aeries where major developers tend to live.

Michael Katz, Scandinavia to DAPAC: Low Is Beautiful, Berkeley Daily Planet (Nov. 6, 2007) (available at

Tuesday, February 19, 2008

Environmental tradeoff between renovation and building new

There was talk last week about the environmental tradeoffs between (1) renovating an existing building and (2) demolishing that building and constructing anew.

To determine which option would be better for the environment, one can apply data-modeling software sold by the Athena Institute.  The data-modeling software, called the Environmental Impact Estimator (EIE), allows users to “assess the environmental implications of industrial, institutional, office, and residential building designs.”[1]  The software, in making its assessment, takes into account the effects of manufacturing building products, actual building construction, and material maintenance and replacement over the building’s life.[2]  The software also accounts for the energy and emission associated with building demolition and the transport to landfills of materials that would not currently be recycled or reused.[3]  Generally, “the energy required to operate a building over its life greatly overshadows the energy attributed to the products used in its construction…[h]owever…effects such as toxic releases to water, effects during the resource extraction and manufacturing stages greatly outweigh any releases associated with building operations.”[4]

The EIE can be used to assess the environmental impact of either new construct or renovation.[5]  Thus, a planner, in determining whether she should renovate an existing building or demolish and build new, can apply the EIE to assess the environmental impact of the two options.  The two assessments can then be compared to determine whether renovation or new construction would be more environmentally friendly.[6]

In conclusion, one cannot make a simple statement that renovation is always preferable to new construction, or vice versa.  Rather, a multi-factor approach is needed in order to make a decision.

[1] Wayne B. Trusty, Renovating vs. Building New: The Environmental Merits, Presentation at OECD/IEA Workshop on Sustainable Buildings, Tokyo, January 2004 at 3 (available at

[2] Id.

[3] Id.

[4] Id.

[5] Id. at 4.

[6] Id.

Transferable Development Rights, John Costonis, and his "Chicago Plan"

One of the first major proponents of Transferable Development Rights plans was John Costonis, who published a number of articles in the early 1970s on the topic:
  • Costonis, The Chicago Plan, Incentive Zoning and The Preservation of Urban Landmarks, 85 Harv. L. Rev. 574
  • Costonis, Development Rights Transfer, An Exploratory Essay, 83 Yale L.J. 75

At that time in American history, particularly in urban America, the historical preservationist movement was just beginning. Penn Station in New York, once a beautiful structure designed by the renowned firm of McKim, Mead and White, had been demolished and replaced by a modern monstrosity. (As an aside, this lead to one of my favorite quotes of all time: “One once entered the city like a god; one scuttles in now like a rat” by Yale architect Vincent Scully). Urban areas around the country could not afford the cost of upkeep needed for architecturally significant buildings, and the city of Chicago was no exception.

Costonis proposed a TDR scheme to help alleviate some of these problems. At the time incentive zoning - which offered bonus density to developers in exchange for a public improvement – was widespread in Chicago. Costonis looked for a method to combine the granting of the bonus density with a mechanism to protect historic buildings. What developed was a trading scheme for density: developers looking for extra density would buy it from nearby historic buildings, providing them with two things they needed: permanent protection of the sight from additional building, and a cash flow to pay for the maintenance that these historic structures needed.

The first article above describes the challenges presented to urban landmarks at this time, then examines New York City’s TDR program for historic landmarks. Last, it examines some of the legal issues that TDR programs present. One thing that is interesting to note is the aftermath of this article. Costonis views NYC’s plan as having major deficiencies and develops his plan for Chicago in light of them. However, over the next few decades, NYC’s plan developed into a moderate success, resulting in the preservation of Grand Central Station and one of the foremost cases on TDRs (Penn Central v. New York City, 438 U.S. 104). Chicago, on the other had, failed to develop a TDR plan, in large part because of the political opposition that developed against the concept of transferable development rights.

Transferable Development Rights programs remain highly controversial in many regards, though there have been a number of successful ones around the country. Some of the controversy has been legal: both Penn Central and a later case, Suitam v. Tahoe Regional Planning Authority, failed to address the constitutionality of TDR programs and the question remains unresolved. Additional challenges result from programs that fail to develop adequate markets for development rights, decisions to make the program voluntary or mandatory, and a general distrust of plans that allow such flexibility and discretion. However, I happen to think they are a really interesting theoretical idea, and when they do work, they can ameliorate some of the inherent difficulties with land use planning. As a full disclosure, I wrote a term paper on TDR programs last year in a Land Use Law class.

Transferable Development Rights- Case Study

This study addresses many of the basic concepts necessary to operate a transferable development rights (TDR) program. The feasibility of a TDR program is examined from legal, environmental, and economic perspectives. The study takes Athens-Clarke County, Georgia, as its case study.

The act of transferring development rights requires four elements:
1. Sending area(s) to be protected,
2. Receiving area(s) to be developed,
3. Transferable credits that symbolize and quantify the development rights being sold; and a
4. Procedure for carrying out the transaction.

The community must identify resources it seeks to protect and establish a sending area defined geographically to best protect those resources. Basically, a TDR program severs the right to develop a parcel from the land itself, but it leaves the landowner the other rights that came with the land, such as the right to exclude members of the public from the property. That land is then safeguarded with deed restrictions or conservation easements that secure the undeveloped state of the land in perpetuity.

The value of the development rights depends on how the community defines the sending and receiving areas and the credits. The local government can assign credits to each landowner in the sending area based on acreage, resource features on the parcel, or the value of an easement on the land. In some jurisdictions TDRs can be purchased to receive bonuses that have nothing to do with the size of the building; they can exempt the holder from any development requirement the city chooses, whether floor area ratio, height, parking, landscaping, or subdivision limits. For example, in Sunderland, Massachusetts, TDRs get exemptions from minimum lots size and frontage regulations.

Federal Law
There is authority under US Constitutional law and state law for local governments to create TDR ordinances. TDR programs were given federal approval by the Supreme Court in Penn Central Transportation Co. v. New York City. In that case, involving New York City’s Landscape Preservation Law, the plaintiffs argued that denial of permission to use the air rights over Grand Central Station to build an office tower was a taking of their private property under the Fifth Amendment of the U.S. Constitution, despite the fact that they could transfer the air rights through a TDR program. The Court did not find that TDRs are necessarily “just compensation” for a taking, if one occurs; however, it did find the ordinance constitutional. It held that the TDRs mitigated the financial burden on the plaintiffs and must be considered when considering the impact of the regulation in determining whether a taking has occurred.

State Law
To meet state and local procedural requirements, if a TDR program is passed, the county or state zoning code may have to be amended to state the additional level of density that can be obtained through TDRs in each applicable zone. From a practical perspective, a key component of a successful TDR program is that TDRs are the only way to achieve increased density in the designated receiving zones. If county zoning bodies allow increases in density through other means, it will significantly diminish the motivation of developers to use the TDR program.

Historic Protection
The protection of historic landmarks is the third most common purpose of TDR programs in the US. Most TDR programs that focus on protecting historic areas are designed for large cities, including San Francisco.

Fiscal Impact
Overall, the program appears affordable. The program may actually result in a gain in property tax collections if implemented in Athens, GA. Even 20 years into a TDR program, the total property tax collection decrease due to the program would be less than 1% of the annual budget. This is before any offsetting due to increased tax collections on surrounding properties or additional development caused by the program.

Summary: Jayni Foley

Dorfman, et. al., The Feasibility of a Transferable Development Rights Program for Athens-Clarke County, Georgia, February 2, 2005, available at

Crossroads, First Ground-Up Green Homeless Shelter

I came across an interesting January 28, 2008 New York Times article on what is believed to be the first ground-up green homeless shelter in the country. Crossroads is located in East Oakland; houses 125 residents; and is the result of the efforts of Wendy Jackson, executive director of the East Oakland Community Project. While Jackson faced resistance from those who insisted her idea of a green shelter went too far, she eventually succeeded in raising $11 million to finance the project.

Many homeless residents that spend time in shelters have a whole host of problems including asthma, HIV, and allergies, and a building that consists of a healthy, green space is a welcomed contrast to the dilapidated warehouses or aging churches in which many shelters are housed. In addition to the solar panels, this shelter employs such green technology as hydronic heating, ceiling fans, nontoxic paints, operable windows, and natural furniture that have health benefits in addition to benefits for the environment.

Crossroads represents a happy “intersection between environmental and social justice issues.” The intersection is one that may well be appealing to Berkeley policymakers as well as residents concerned about the seriousness of the homeless problem in Downtown Berkeley as well as finding ways to protect the environment in an urban setting. Provided that either public or private organizations can successfully raise the appropriate funds, shelters like Crossroads if built in Downtown Berkeley can effectively address safety, health, and environmental issues.

A Shelter Is Built Green, to Heal Inside and Out, New York Times, January 29, 2008 available at

2/14 Small Group Discussion on Paper Topics

Our group was particularly interested in two potential topics: reducing crime and TDR’s.

The goal of the first topic would be to focus players on issues of crime (using economic data which shows declining crime rates and a corresponding increase in economic development). It is important that we seperate issues of homelessness and actual criminal acts. We would research the ordinances other communities have in place which have been upheld as Constitutional limits on loitering and panhandling, and then redraft the Berkeley statute so it wouldn’t be found to be void for vagueness. Also, we would like to examine community service models and programs to better connect those in need with resources to assist them.

In relation to TDR’s, our primary focus was on comparing the successful use of such programs in other cities and drawing corollaries to downtown Berkeley.

Group members: Alison, Matt, Jesse and Erin

Notes from 2/14 Criminalization of Homelessness discussion

here are my notes from the criminalization of homelessness event last thursday. it was an engaging, thought provoking discussion that raised a number of issues potentially relevant to our project. so there is actually some good stuff in my notes, but if you find them to be lacking in coherence feel free to ask me a question and i'll try to clarify. also, i'm going to follow up on a number of the issues in additional posts that will be coming shortly.

A. Criminalization of homelessness in San Francisco:
1. citations targeted at the homeless
--- issued for things like sitting on the sidewalk or in a park, sleeping on the sidewalk or in a park; trespassing on public property; having an open container also big;
---the number of these citations has more than quadrupled in san fran
---the DA in the city has decided to prosecute all “homelessness” crimes; prior to this when these cases were heard in traffic court no attorneys were present for the state; the DA is now prosecuting the homelessness crimes, but continues to not prosecute other general traffic violations; the DA is not exercising discretion at all---not looking at probably cause etc--- but rather pushing for trial or guilty plea and not dismissing period
---media coverage: the Chronicle has been especially vocal about getting homeless off street and into criminal justice system
---people getting anxious with mayor—in four years he hasn’t delivered on promise to address homelessness
---major consequences for homeless people because they generally cant find representation: a few organizations are able to defend a small number of people, but most are on their own so they get convicted and have a warrant issued against them;
---POLICY POINT: this type of enforcement is a backdoor way to give people criminal records without representation; they don’t get a public defender for the citation and it affects their ability to get jobs, etc… down the road; thus it basically traps people in place instead of working to facilitate a solution;

2. property confiscation:
--- police threaten homeless to either leave or have their belongings taken and thrown away
---the city is supposed to have a policy of storing things so people can get them back but this hasn’t happened;

B. Criminalization of homelessness in Berkeley
---much of san fran discussion also applies to Berkeley;
---reputation of city is progressive, but nonetheless has very onerous policy regarding homelessness;
GOOD POINT: people in Berkeley are more radical/progressive the further detached from day to day reality the issues is; ie radical about war and torture, conservative about homelessness
---the Chronicle articles regarding homelessness are “practically yellow journalism against homeless people”
---GOOD POINT: separate homelessness from criminal activity/public indecency; there are already laws against actual crimes and unruly behavior like public urination but laws at issue target people who are just sitting on the sidewalk or in a park because they have no where else to go;
---berkeley city council passed resolution saying police of Berkeley should enforce all laws applicable against homeless: obstructing sidewalk, etc…
--- police as such are “garbage collectors” of Berkeley: role is to push people out of town, send them elsewhere;
---examples of osha’s clients:
---disabled woman in wheel chair, was in park sitting; cited for loitering under statute in Berkeley saying unlawful for people to loiter near park or school yard within certain distance of school children
---guy sitting on public sidewalk, cited for trespassing
---50 year old man asleep in doorway on Shattuck, cited for obstructing business entrance at 6am on Sunday morning
---62 year old woman in wheel chair and legally blind, a diabetic with arthritis cancer and schizophrenia, cited for trespassing for seeking shelter in empty door front on Shattuck;
---two women sitting on sidewalk leaning up against empty store front; cited for trespassing on public sidewalk; numerous complaints about trash, urination; but women were just sitting there;

C. Broader Policy considerations and other general thoughts from the discussion

---visibility of homelessness is especially disturbing to people; people don’t want to have to face realities of the system: problem is difficult to solve because society wants homeless to simply to go away but don’t want to care for them, provide necessary services

--- should the homeless be considered a “suspect class” under due process clause?
---they are an insular, segregated minority;
---ability to self-organize is very low; suffer from addiction, mental illness;

---in order to solve poverty the poor need to organize and develop a political voice---MLK envisioned a poor peoples march on Washington;
---[MY NOTE: see Kensington group in philly for example of homeless organization]

---EVENT: in march at Berkeley there will be a large conference on criminalization of poverty

---lack of housing/shelters is key issue: where do people go if not on street? If they cant go on the street, what options for people other than punishing them with the criminal justice system?

--- red hook community justice center:
---alternative to criminalization
---court is like a community center that connects people that come into system with resources needed to help them; judges investigate nature of problem; committed to needs of individual clients given the specific facts of a case; model also focuses more on more serious crimes than just homelessness

---there is more of a “street scene” in berkeley and san fran than in other places; more possible for homeless to find community

---The Jones decision—Los Angeles Case:
--- stated that it is cruel and unusual punishment to criminalize being homeless and on the street if people have no where else to go---thus major issue is lack of shelters;
---decision vacated pursuant to a settlement made by southern cali ACLU which brought suit;
---homeless advocates were upset with souther cali ACLU for agreeing to that settlement;
---although it cannot be cited as precedent it has persuasive effect that 8th amendment can apply to these homelessness cases
---can’t punish conduct or form of being that is involuntary; ie can’t punish someone for something that they cant help but be;

---Other important cases: pottinger; robinson v. cali; powell v. texas (plurality of sup. Ct says you cannot punish a chronic alcoholic for drinking in public; 4 dissenters plus one concurring [relied on in jones decision])

---Osha’s arg: cant enforce these homeless laws constitutionally unless people have other alternatives;

---one Alameda county innovation is the homeless caring court;
---a one shot opportunity for people working in a program to get out of homelessness to have old citations dismissed if they can persuade judge that they are on the path to self improvement;
---great, but does contribute to categorical distinction between worthy and unworthy poor

---No place to go to detox in Berkeley;

---the most effective organization for getting popele off streets in Berkeley is
homeless action center—gets people on SSI for example